RECEIVED
BEFORE
THE POLLUTION
CONTROL
BOARD
CLERKS
OFFICE
OF THE STATE
OF ILLINOIS
SEP
232005
STATE OF ILLINOIS
IN THE MAnER
OF:
)
Pollution Control Board
)
PROPOSED
AMENDMENTS TO: REGULATION
)
R 04-22
OF PETROLEUM
LEAKING UNDERGROUND
)
(Rulemaking
-
Land)
STORAGE
TANKS (35
ILL.ADM.CODE
732)
)
IN THE MAUER
OF:
)
R 04-23
PROPOSED
AMENDMENTS TO:REGULATION
)
(Rulemaking
-
Land)
OF PETROLEUM
LEAKING UNDERGROUND
STORAGE TANKS
(35
ILL.ADM.CODE 734)
NOTICE
Dorothy Gunn, Clerk
Marie Tipsord, Hearing Officer
Pollution Control Board
Pollution Control Board
James R.
Thompson Center
James R.
Thompson Center
100W. Randolph, Ste.
11-500
100W. Randolph, Ste 11-500
Chicago, Illinois
60601
Chicago, Illinois 60601
(OvernightMail)
(Overnight Mail)
See Attached Service List
PLEASE TAKE
NOTICE that I have today filed with the Office of
the
Clerk of the Pollution Control
Board the
Illinois
Environmental Protection
Agency’s Comments
on behalf of the Illinois
Environmental
Protection Agency,
a copy of which is herewith served
upon you.
ENVIRONMENTAL PROTECTION AGENCY
OF THF STATE OF ILLINOIS
By:
_________________________
Kyle Romin~r
Assistant Counsel
DATE: September 22,
2005
Agency File #:
Illinois
Environmental
Protection Agency
1021
North Grand Ave. East
P.O. Box
19276
Springfield,
IL 62794-9276
RECEIVED
CLERK’S OFFICE
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
SEP
232005
IN THE MATTER OF:
)
STATE OF
ILLINOIS
)
Pollution Control Board
PROPOSED AMENDMENTS TO:
)
R04-22
REGULATION OF PETROLEUM
)
(Rulemaking
—
Land)
LEAKING UNDERGROUND STORAGE
)
TANKS (35 ILL. ADM. CODE 732)
)
IN THE MATTER OF:
)
)
PROPOSED
AMENDMENTS TO:
)
R04-23
REGULATION OF PETROLEUM
)
(Rulemaking
-
Land)
LEAKING UNDERGROUND STORAGE
)
TANKS
(35
ILL.
ADM. CODE 734)
)
COMMENTS OF THE ILLINOIS
ENVJRONMENTAL PROTECTION AGENCY
NOW COMES the Illinois Environmental Protection Agency (“Illinois EPA”), by
and through one ofits
attorneys, Kyle Rominger,
and submits the following comments.
These comments
are divided into three sections.
The first section contains comments on
testimony submitted to the Board in response to its Proposed Rule First NoticeOpinion
and
Order dated February
17,
2005, (“First Notice Proposal”).
The second section
contains comments on public comments submitted to
the Board
in response to
its First
Notice Proposal.
The third section contains a few suggested non-substantive changes to
the nhlesproposedbytheBoard to
correct
rntnorawr
trdr~mowzorisi~tency
among
-
the rules’ provisions.
While many suggestions and issues deserving comment have been raised, time
does not pennit the Illinois EPA to provide detailed comments
on all of them in this
document.
Moreover, the usefulness of this document would be diminished by its length
if the illinois EPA addressed each issue and suggestion raised in the testimony and public
comments
submitted to the Board~The absence ofa comment on any testimony or public
comment should not be
construed as Illinois
EPA acquiescence in, or support for, the
testimony or public comment.
For ease of reading, like most testimony and public comments these comments
mainly reference only provisions, in Part 734.
These
comments should be taken as also
--
applying to the corresponding provisions in Part 732 in addition to the referenced
provisions of Part 734.
I.
Comments on Testimony Submitted in Response to the Board’s First Notice
Proposal
The Illinois EPA supports the rules proposed by the Board in its First Notice
Proposal.
Like the Board, the Illinois EPA believes that the rules, as a whole, will allow
for reimbursement ofreasonable remediation costs from the Underground Storage Tank
(“UST”) Fund.
The Illinois EPA also believes that the Board’s proposal establishes
reasonable and appropriate rules for the implementation of the statutory changes to the
LUST Program
enacted in 2002.
The Illinois EPA requests that the Board proceed with
adopting the rules proposed in
its First Notice Proposal.
The following are
specific Illinois EPA comments regarding testimony submitted
in response to theBoard’s First Notice Proposal;
1.
Section 734.100
CW3M suggests changing Section 734.100 “to clarify that the proposed rules
should not be used as final rules before the rulemaking process has been complete±”
Exh.
106 at 11.
CW3M’ s suggested revisions appear to be unnecessary.
First, the
suggested changes would not take effect until the Board’s proposed rules are adoptedas
2
final rules.
Therefore, the above stated purpose ofpreventing use ofthe rules prior to
their adoption could not be accomplished.
Furthermore, the Administrative Procedures
Act already prohibits the Illinois EPA from implementing the proposed rules as final
rules until the rulemaking process is complete.
See
5
ILCS
100/5-10(c) (rules not valid
or effective and may not be invoked forany purpose unless properly adopted in
accordance with the Administrative Procedures Act).
Second, CW3M’s suggested
change ofthe word “applies” to
“is intended” in
Section 734.100(a) converts an
applicability section into an intent section, which could minimize the effect ofthe
provisions
that explain how and to whom the rules must apply.
Third, CW3M’s
suggested changes limit Part 734 to
the implementation ofthe statutory amendments
contained in P.A.
92-0554 andP.A.
92-735.
Although the Board’s proposed rules
implement the amendments made by those two public
acts, they also implement the rest
ofthe LUST Program’s statutory provisions (i.e., Title XVI ofthe Environmental
Protection
Act (“Act”), including the other amendments enacted in
2092 in P.A.
92-754
and
P.A. 92-651).
Finally,
regarding CW3M’s suggested change to Section 734.100(d),
payment forwork approved prior to the effective date ofthe proposed rules is already
addressed in Section 734.100(a)(2), which provides for the same payment as CW3M’s
suggested language.
,
As the Board stated in its First Notice Proposal,
it carefully examined Section
734.100 and made appropriate revisions to the Section to
clarify the applicability
language and to
ensure that the rules do not apply retroactively.
First Notice Proposal
at
63.
The Illinois EPA does not believe the additional revisions suggested by CW3M are
3
necessary or that CW3M has provided sufficient justification for changing the Board’s
First Notice Proposal.
2.
Section 734.340(b)
CW3M suggests a change to
Section 734.340(b) to “reflect that more than one
alternative technology may not always be available.”
Exh.
106 at
13.
CW3M states that
“ojK15
available
alternatives should be cost compafed.”
a
CW3M’s concern is already addressed in the Board’s proposal.
Therefore,
the
suggested change appears unnecessary.
Under Section 734.340(b), an owner or operator
intending to
seek payment for costs associated with an alternative technology must
demonstrate that the cost ofthe technology “is not substantially higher than other
available alternative technologies.”
35
Ill. Adm. Code
734.340(b) ~roposed)
(emphasis
added). If a particular technology is not available (e.g., it cannot be implemented at the
site due to site conditions), no
cost comparison to the technology is required.
The Illinois
EPA would not require costs to be compared to an alternative technology that
cannot be
used.
The Illinois EPA does not believe the change suggested by CW3M is necessary or
that CW3M has provided sufficient justification for changing the Board’s First Notice
Proposal.
3.
Section 734.505
CW3M suggests adding wording to
Section
734.505(b)(3)
to require “more
specific language from the Agency” to
explain Illinois EPA decisions.
This change
appears to be unnecessary.
The proposed rules already provide; asrequired by statute,
that any rejection or modification of a plan, budget, or report by the Illinois EPA must
include, inter alia, “a
statement ofspecific reasons why the cited
Sections of the Act
or
4
regulations may be violated if the plan, budget, or report is
approved.”
35
Ill. Adm. Code
505
(proposed) (emphasis added).
The Illinois EPA does not believe the change
suggested by
CW3M
is necessary or that CW3M has provided sufficient justification for
changing the Board’s First Notice Proposal.
4.
Section 734.5 10
CW3M suggests deleting from Section 734.510(b) the standards the Illinois EPA
has long been required to use when conducting financial reviews.
In place ofthese
standards,
CW3M suggests that the Illinois EPA merely be required to
determine that
costs are “consistent with this Part 734.”
The Illinois EPA believes the suggested change is inappropriate.
By statute, the
Illinois EPA is chargedwith the duty ofensuring that costs arereasonable, are incurred in
the performance of site investigation or corrective action, and
are not for activities
in
excess ofthose required to meet the minimum requirements of Title XVI ofthe Act
(“Title XVI”).
~cc
415
ILCS
5/57.7(c)(3)
(as amended by P.A.
92-554).
The standards
ofreview set forth in proposed Section 734.510(b), which repeat the long existing
standards ofreview set forth in Section
732.505(c),
mirror the Illinois EPA’s statutory
criteria forreviewing costs and should remain
in the rules.
The Illinois EPA does not
believe the change suggested by CW3M
is appropriate or that CW3M has provided
sufficient justification for changing the Board’s First Notice Proposal.
5.
Section 734.605
CW3M suggests striking proposed Section 734.605(b)(10), which requires that
*
proofofpayment ofsubcontractor costs be included in an application for reimbursement
when handling charges for the subcontractor costs are requested.
CW3M also suggests
5
striking
Section 734.630(u), which states handling charges for subcontractor costs
are
ineligible for reimbursement when proof ofpayment of the subcontractor costs
is not
provided.
In addition, CW3M suggests adding a new Section
734.625(a)(23)
that
states
handling charges may be eligible for reimbursement if they are supported
by only
“receipts, invoices or other documents.”
CW3M claims that submitting proofofpayment
of subcontractor costs will increase its
costs ofperforming work.
Exh.
106 at 14.
It also
claims that the requirement is “unduly burdensome based on the shear sic
number of
projects, subcontractors
and payments
that we manage.”
Li
The Illinois EPA believes the suggested changes are inappropriate.
A business’
workload understandably increases as the number and complexity ofits projects increase.
However, that increased workload should not excuse theproper documentation of costs
reimbursed from the UST Fund.
As noted in the Board’s First Notice Proposal, the ruies
already prohibit payment of handling charges if the primary contractor has not paid the
subcontractor.
35
Ill.
Adm. Code
732.606(mm).
The sections CW3M suggests
striking merely require owners and operators to submit proofthat the subcontractor has in
factbeen paid.
Such proof is necessary “because
of ‘an alarming number ofphone
calls’ to
the Agency from subcontractors claiming
they have not been paid.” ~
First
Notice Proposal at 72.
The Board has already considered requests to delete the proofof payment
tequirement and rejected the requests.
First Notice Proposal at 72.
However, the Board
provided language in its proposed Section
734.605(b)(10) to clarify that the proofof
payment requirement
can
be met many different ways.
$çç First Notice Proposal at
72;
35
Ill.
Adm.
Code
734.605(b)(10)
(proposed).
The Illinois
EPAbelieves the Board’s
6
proposed language is appropriate.
The Illinois EPA does not believe the changes
suggested by CW3M are appropriate, or that CW3M has provided sufficient additional
justification to warrant a change to the Board’s First Notice Proposal.
CW3M also suggests changes to Sections 734.605(j)
and 734.630(nn) to
allow
applications for payment to
be submitted more than one year after the issuance ofthe No
Further Remediation Letter.
Under CW3M’s changes the one-year deadline can be
exceeded “for any circumstance in which all applications for payment cannot be
submitted within one year after the Agency issues a No Further Remediation
Letter”
Exh.
106 at Section 734.605(j) (emphasis added).
The owner or operator only need
submit the reason for exceedingthe deadline, the estimated amount ofreimbursement
that will be requested in the future, and the anticipated date the final application will be
submitted.
fl
This suggested change nullifies the one-year deadline for submitting
reimbursement applications because the deadline can be exceeded for any reason.
6.
Section 734.625
CW3M
suggests adding several specific ~osts to Section 734.625(a), which sets
forth costs that may be eligible for reimbursement.
The suggested changes
do not appear
to be necessary.
The list ofcosts in
Section 734.625(a) is not an
exclusive list.
It merely
contains examples ofcosts that p~ybe eligible for reimbursement.
The eligibility of a
particular cost is not dependant upon its
listing in Section
734.625(a).
Eligibility is
determined by other factors.
Adding the costs suggested by CW3M will not make those
costs any more eligible for reimbursement.
Furthermore, attempting to identify in the
rules every cost that may be eligible for reimbursement would result in
a list
exponentially longer than the already lengthy list ofnon-eligible costs in Section
7
734.630.
The Illinois EPA does not believe the changes suggested by CW3M are
necessary or that CW3M has provided sufficient justification to warrant a change to the
Board’s First Notice Proposal.
7.
Section 734.630
a.
CW3M suggests making costs associated with the compaction of
backfill material eligible for reimbursement by deleting “compaction and” from
Section
734.630(w).
As discussed above, CW3M
also suggests adding costs
associated with the compaction ofbackfill material to Section 734.625(a), which
lists costs that may be eligible for reimbursement.
The Illinois EPA does not
believe the suggested changes are appropriate.
Costs associated with the
compaction ofbackfill material have long been ineligible for reimbursement, and
CW3M has not provided sufficient justification for changing this long-standing
rule.
See 35
Ill. Adm. Code 732.606(w).
CW3M
states that “completing
compaction during the backfill process
returns the site to one with a stable foundation suitable for redevelopment and
avoids multiple
trips back to the site to provide additional
materials and grading
where the excavation has settled.
The subsurface should be returned to
a
condition similar to
the pre-excavation condition.
Thus,
compaction should be an
eligible expense.”
Exh.
106
at 16.
Returning the subsurface of a site to
apre-
excavation condition that
is suitable for redevelopment, however, is not required
as a part ofcorrective action.
Such activity exceeds the minimum requirements of
Title XVI,
and therefore is not
eligible for reimbursement.
See, ~
McDonald’s
Corp. v.
IEPA, PCB 04-14 at
10 (January 22, 2004) (compaction ineligible for
8
reimbursement because it is not corrective action).
Furthermore, the issue of
reimbursement for compaction costs has already been addressed by the Board in
these proceedings.
See First Notice Proposal at 82.
The Illinois
EPA does not
believe the suggested changes are appropriate orthat
CW3M has provided
sufficient additional justification to warrant a change to the Board’s First Notice
Proposal.
b.
Currently, costs incurred after the issuance of a No Further
Remediation (“NFR”) letter are ineligible
for reimbursement.
See
35 Ill.
Adm.
Code 732.606(kk).
The Board’s First Notice Proposal adds three exclusions to
this provision forcosts related to
corrective action that
is conducted prior to
the
issuance of the NFR letter but typically not completed until after the issuance of
the NFR letter.
See 35
Ill. Adm. Code
734.630(gg)(2)
-
(4) (proposed)
(addressing costs related to abandoning monitoring wells, recording the NFR
letter, and submitting applications for reimbursement).
The Board’s proposal also
adds exclusions for costs incurred pursuant to
Board rule or a court order.
~
35
Ill. Adm. Code 734.630(gg)(1) (proposed) (addressing remediation ofMTBE
contamination where MTBE is added as an indicator contaminant pursuant to
Board
rule); 3.
Ill.
Adm.
Code 734.630(gg)(5) (proposed) (addressing on-site
remediation to Tier
1
objectives pursuant to a court order).
CW3M suggests adding the following additional exclusions to
Section
734.630(gg) to allow reimbursement from the UST Fund for other activities
conducted after the issuance ofan NFR letter:
9
1)
CW3M suggests adding Section 734.630(gg)(6) to allow
the reimbursement of“incremental costs incurred by
a highway authority
through maintenance improvement ofthe Right of Way covered by a
Highway Authority Agreement.”
Exh.
106 at Section 734.630(gg)(6).
The Illinois EPA believes this change is inappropriate.
The definition of
“incremental costs” is not clear,
so this exclusion would be difficult to
administer.
Furthermore, costs incurred by a highway authority are not
costs
incurred by the owner or operator and therefore would not be eligible
forreimbursement from the Underground Storage Tank Fund.
In addition,
exactly what activities constitute “maintenance improvement ofthe Right
of Way,” or whether such activities are required as a part ofcorrective
action under Title XVI, are also unclear.
The Board addressed the eligibility of costs incurred pursuant to
highway authority agreements in the last LUST
rulemaking and found that
such costs are not eligible for reimbursement.
See In the Matter of
Regulation ofPetroleum Leaking Underground Storage Tanks;
Amendments to 35 Ill. Adm.
Code 732,
R
0 1-26 at 5-7 (February 21,
2002) (Proposed Rule, Second Notice).
Therefore, allowing
reimbursement ofthe costs would be improper.
The Illinois EPA does not
believe the suggested change is appropriate or that CW3M has provided
sufficient justification to warrant a change to
the Board’s First Notice
Proposal.
10
2)
CW3M suggests adding Sections 734.630(gg)(7) through
(11), as well as Section 734.630(gg)(6), to
allow for the reimbursement of
certain costs after the issuance of an NFR letter.
The Illinois EPA believes
these changes are inappropriate.
The Illinois EPA agrees with the Board’s finding in the previous
Part 732 rulemaking, that, “absent special circumstances such as MTBE
contamination, the UST Fund should not be used to
pay for remediation
costs once the Agency issues an NFR Letter.
An NFR letter signifies that
no thrther corrective action is necessary, thus making the use ofthe UST
Fund unnecessary.”
In the Matter ofRegulation of Petroleum Leaking
Underground Storage Tanks: Amendments to 35
Ill.
Adm.
Code 732, R
01-26 at7 (February 21, 2002) (Proposed Rule, Second Notice).
In the
same rulemaking, when discussing the issue ofoff-site access denial, the
Board noted that “an NFR letter does not absolve a UST owner or operator
from liability for cleaning up off-site releases, even where an NFR letter
has been issued.”
In the Matter ofRegulation ofPetroleum
Leaking
Underground Storage Tanks; Amendments to 35
III. Adm.
Code
732, R
01-26 at
12 (November 1, 2001) (Proposed Rule, First Notice).
The Board
has already acknowledged through its previous Part 732 rulemaking
opinions that, while an owner or operator may be liable for certain
additional remedial activities after the issuance of an NFR letter, remedial
activities conducted after the issuance ofthe NFR
letter are not eligible
for
reimbursement from the UST Fund.
Such remedial activities would
11
exceed the minimum requirements ofthe Title and therefore would not be
eligible for reimbursement.
415
ILCS
57.7(c)(3) (as amended by P.A.
92-574).
The changes suggested by CW3M are not consistent with the
exclusions the Board is adding to Sections 732.606(kk) and 734.630(gg).
The changes do not address activities related to
corrective action
conducted prior to the issuance ofthe NFR letter, nor do they address
activities conducted pursuant to a LUST Program Board rule or a court
order.
The Illinois EPA does not
believe the changes suggested by
CW3M are appropriate orthat CW3M has provided sufficient justification
to warrant a change to the Board’s First Notice Proposal.
c.
CW3M suggests deleting Section
734.630(h) to allow
reimbursement of handling charges for subcontractors costs without proofof
payment ofthe subcontractor costs.
Please see
the discussion ofCW3M’s
suggested changes
to Section 734.605 (above) for comments on this change.
d.
CW3M
suggests deleting
Section 734.630(oo) to
allow payment of
handlings charges when the prime contractor and subcontractor are related
entities.
CSD also testified in
support ofallowing reimbursement ofhandling
charges when theprime contractor and the subcontractor are related.
Their
arguments in support ofthis change center on the costs the prime contractor
incurs
for administration, insurance, and interest costs, and
a reasonable profit for
procurement, oversight, and payment ofthe subcontract.
12
Unlike the situation where a third party is subcontracted, the primary
contractor does not incur many ofthese costs when a related entity is
subcontracted.
Furthermore, when such costs are incurred forrelated
subcontractors they are the result of the prime contactor’s or its
owner’s decision
to
conduct business through multiple entities instead ofa single entity.
There are
many reasons for conducting business through
multiple entities.
One result,
however,
is an increase in the cost of conducting business.
The Illinois EPA does
not believe the UST Fund should be used to
cover these additional
costs resulting
from a voluntary business decision.
As
noted by the Board,
“there is no prohibition over hiring one’s own
company to do the work and be paid a fair price including profit.”
First Notice
Proposal at 71.
Under the Board’s proposal persons conducting business through
multiple entities will still receive a profit for the work their related entities
perform.
The Illinois EPA does not believe the suggested change is necessary,
or
that CW3M or CSD
have provided sufficient additional justification to warrant a
change to the Board’s First Notice Proposal.
e.
In Section 734.630(aaa), and throughout the Board’s proposed
rules, CW3M suggests deleting the word “maximum” from the term “maximum”
payment amount.
CW3M does not provide any additional testimony to
support
these changes.
The Board has already considered and declined a request to
change the phrase “maximum payment amount.”
See First Notice Proposal at 82.
The Illinois EPA agrees with the Board’s determination that the phrase is
appropriate in the context ofthese rules.
The Illinois EPA does not believe that
13
the suggested change is necessary or that CW3M has provided sufficient
justification to warrant a change to the Board’s First Notice Proposal.
£
CW3M
suggests deleting
Section 734.630(ccc) due to possible
negative effects on property values.
CW3M cites 35 Ill.
Adm. Code
620.260,
Reclassification ofGroundwater by Adjusted
Standard, as support for its assertion
that “the IEPA
and the Board recognize that changing groundwater standards can
affect,
among other environmental
and economic standards, property values.”
See Exh.
106 at 19.
However, CW3M has not adequately demonstrated how 35
Ill.
Adm.
Code 620.260 applies to reimbursement from the UST Fund.
Proposed
Section 734.630(ccc) does not require an owner or operator to reclassify
groundwater by an
adjusted standard.
Furthermore, the effect ofremediation on
property values is not a factor in UST Fund reimbursement.
Reimbursement from
the UST Fund is limited
to the reasonable costs necessary to meet the minimum
requirements ofTitle XVI.
Sc~
415 ILCS
5157.7(c)(3)
(as amended by PA.
92-
554).
Using a groundwater ordinance as an institutional control meets the
minimum requirements.
The Illinois EPA does not believe the suggested change
is necessary or that CW3M has provided sufficient justification to warrant
a
change to the Board’s First Notice Proposal.
8.
Section
734.665
CW3M suggests changing Section 734.665
50
that Licensed Professional
Engineers and Licensed Professional Geologists who certify plans, reports, budgets,
•
applications for payment, and other documents arenot required to maintain information
directly pertinent to those documents and are not required to
allow the Illinois EPA to
14
inspect such information (e.g., financial information
and data used in the preparation of
the submitted documents).
~
Exh.
106
at Section 734.665.
CW3M also suggests
requiring the Illinois EPA to provide a list ofthe documents that will be required during
any inspection.
See Id. at Section
734.665(b).
The Illinois EPA believes the suggested
changes are inappropriate.
Although the
rules require owners and
operators to submit the plans, reports, budgets, applications for
•
payment, and other documents to the Illinois EPA, these documents are often, if not
routinely, submitted directly to the Illinois EPA by the consultant.
In many cases the
owner’s or operator’s only involvement
in the process is signing the documents.
As a
result, they are not likely to have much more information
about the documents submitted
to the Illinois
EPA other than their copy of the documents.
Limiting the Illinois EPA’s
review to the information maintained by the owner oroperator would essentially limit the
review to the documents the Illinois EPA has already received.
The Illinois EPA needs to
review the information maintained by the owner’s or operator’s consultant who prepared
the documents in order to
conduct a complete and proper review ofthe information
submitted
on behalfofthe owner or operator.
Regarding the requirement that the Illinois EPA must provide a list ofdocuments
required during any inspection, it is impossible for the Illinois EPA to provide such a list.
The Illinois EPA cannot possibly know what information is in the consultant’s or the
owner’s or operator’s possession until it conducts its review.
Furthermore, this limitation
is inconsistent with the auditing and record retention provisions in
other Board and
Illinois EPA rules. The Illinois EPA does not believe the suggested changes
areS
15
appropriate or necessary, orthat CW3M has provided sufficient justification to warrant a
change to
the Board’s First Notice Proposal.
9.
Section 734.800
a.
CW3M suggests changing Sections 734.800(a) and
(c) to create a
presumption ofreasonableness for the costs set forth in
Subpart H.
It also
suggests amending
language in other sections to change maximum payments
amounts into amounts that are “considered reasonable.”
~çç, ~
the suggested
changes to the first sentences of Sections 734.8 10 and 734.8 15.
CW3M does not
provide any additional testimony to support these changes.
CSD
suggests changing the maximum payment amounts in
Subpart H to
“threshold values at or below which proposed budgets and requests for
reimbursement can be approved without significant review, but require the
owner/operator to submit actual costs for Agency review and approval.”
Exh.
99
at 3.
Reimbursement could exceed the threshold value under a “longer and more
detailed review.”
Id.
USI does not appear to believe that a fbndamental shift in
Subpart H to
“considered reasonable” or “threshold” amounts is necessary, at least in Sections
734.810 through 734.840.
USI states in its testimony that “USI’s experience in
LUST work in Illinois
indicates that the billing methods, units of measure and
prices set
forth in
Section 734.8 10 through 734.840 of the Board’s First Notice
Proposal
are not highly inconsistent with those prevailing in the market today.
And,
to the extent that themaximum payment amounts are inconsistent with
prevailing market rates or insufficient to cover unique situations, the scope of
16
work for these activities
is defined in sufficient detail to
accommodate the use of
the competitive bidding provision and extraordinary circun~stances
provision
provided
in 734.855
and 734.860 as a means ofestablishing alternative maximum
payment amounts.”
Exh.
109
at
33-34.
The changes suggested by CW3M and
CSD would entirely alter the intent
and effect ofSubpart H.
As
stated in the Board’s proposal,
Subpart H “provides
methods for determining the maximum amounts that can be paid
from the Fund
for eligible corrective action
costs.”
35111. Adm.
Code 734.800(a) (proposed)
(emphasis added).
The maximum payment amounts in Subpart H were developed
and intended to be used as maximums, not speed bumps.
Still, they arenot
absolutes.
The maximum payment amounts can be exceeded via the bidding and
the unusual or extraordinary circumstances provisions in the Board’s First Notice
Proposal.
Allowing costs to be reimbursed over and above the maximum payment
amounts, outside ofthe bidding and the unusual or extraordinary circumstances
provisions, renders the bidding and theunusual or extraordinary circumstances
provisions superfluous.
Furthermore, based on past experience, the Illinois EPA
believes the changes suggested by CW3M would result in frequent if not common
attempts to
exceed “considered reasonable” or “threshold” amounts set forth in
the rules rather than routine requests for reimbursement at orbelow the
“considered reasonable” or “threshold” amounts because of a desire for more
expeditious reviews and approvals.
The Illinois EPA does not
believe the
suggested changes are necessary or appropriate, or that
CW3M or CSD has
17
provided sufficient justification to warrant a change to
the Board’s First Notice
Proposal.
b.
CW3M suggests changing Section
734.800(b) to
allow costs not
specifically listed under a particular task to be reimbursed separately from the
maximum payment
amount for the task.
CW3M does not provide any additional
testimony to
support this change.
The suggested change would alter the entire structure ofSubpart H, which
includes all
costs associated with
a particular task in themaximum payment
amount allowed for the task.
Allowing individual costs associated with
a task to
be reimbursed over and above themaximum payment amount for the task will
result in
the eventual devolution ofSubpart H into reimbursement on a time and
materials basis for every item and task not specifically identified in the rules.
As.
the Illinois EPA testified, the development of an all-inclusive list ofcosts
associated with eachtask identified in Subpart H would be impossible.
The
Illinois EPA’s testimony is echoed in USI’s comments, where USI states that “it
is reasonable to believe that it would be impossible to capture, in
a rule of this
nature, a list ofall products or services that may be needed during
a UST
remediation project.”
PC 59
at 44.
The Illinois EPA does not believe that the
suggested change is appropriate or that CW3M has provided sufficient
justification to warrant a
change to the Board’s First Notice Proposal.
c.
CW3M suggests changing Section 734.800(c)
to eliminate the
submission
of cost breakdowns and invoices for costs paid by “lump
sum
or unit
ofproduction” and to
allow reimbursement in excess of the maximum payment
18
amounts ofSubpart H if the reimbursement applicant provides “separate and
adequate justification ofcostJ
reasonableness on
a time and materials basis.”
Exh.
106 at Section 734.800(c).
CW3M does not provide any additional
testimony to support these changes.
Regarding the first change, a description ofthe type of supporting
documentation the Illinois EPA believes is necessary in a reimbursement
application is already in the record ofthese proceedings.
One item that certainly
is necessary is
an invoice with a minimum amount information to document the
costs requested for reimbursement (e.g., the task performed, the amount charged
forthe task, and the date the task was conducted).
Regarding the second
change,
the Board’s proposal already allows an owner or operator to
exceed the maximum
payment amounts via bidding and the unusual or extraordinary circumstances
provisions.
The Illinois EPA does not believe the suggested changes are
necessary or appropriate, or that CW3M has provided sufficient justification to
warrant a change to the Board’s First Notice Proposal.
d.
CW3M suggests adding a Section 734.800(d) to provide
reimbursement of emergency activities on a time and materials basis.
CW3M
does not provide any
additional testimony to support this change.
There is
nothing to show that emergency activities need to be reimbursed differently than
non-emergency activities.
Under the Board’s proposal emergency activities will
be reimbursed to the same extent and in the same manner as non-emergency
activities.
The Illinois EPA does not believe the suggested change is necessary or
•
19
appropriate,
or that CW3M has provided sufficient justification to warrant a
change to the Board’s First Notice Proposal.
10.
Section 734.810
CW3M suggests changing Section
734.810 to
exclude several costs from the
maximum payment amounts allowed for UST removal and abandonment and
to
reimburse the costs on a time and materials basis.
CW3M also suggests changing the
maximum payment amounts for UST removal and abandonment.
CW3M does not
provide any reasoning for excluding the identified costs from the maximum payment
amounts, nor does it explain how its
suggested maximum payment amounts were
calculated.
CSD
also suggests changing the maximum payment amounts in
Section 734.8 10
and
suggests reimbursing costs associated with filling USTs abandoned in place on a time
and materials basis.
The payment amounts suggested by CSD are based upon
RS Means
calculations and are different that the amounts suggested by CW3M.
USI
states in its testimony that it “agrees with the Board when they state that the
rates should be based upon actual experience in the UST program in Illinois.
RS Means
and
other sources that do not specifically track costs associated with the Illinois UST
program are not
likely to reflect the requirements and costs unique to the Illinois
Underground Storage Tank Program and the peculiarities of the Agency’s administration
ofthe program.”
Exh.
109 at 32 (citations omitted).
USI
further states that
it believes the
maximum payment amounts set forth in Section 734.8 10 of the Board’s First Notice
Proposal “are appropriate,” and that it has “no objection to their implementation.”
Id.
at
20
40 (no objection to
the maximum payment amounts in Sections 734.810 through
734.840,
excluding
drilling mobilization costs).
•
PIPE previously proposed alternative rates for UST removal
and abandonment
that were based on the 2004
RS Means Environmental Costs Handling Options
and
Solutions
publication.
See First Notice Proposal at 81.
In its First Notice Proposal the
Board stated that it “is not convinced that basing rates on
RSMeans
in and ofitself is
appropriate.
Although as indicated above, the Agency’s method for developing the
maximum payment amounts had statistical limitations, the Agency’s rates were based on
real data from actual sites in Illinois.
Therefore, the Board rejects alternative rates, such
as
RS Means,
and the Board will propose the rates as developed by the Agency for first
notice.”
Id.
CW3M and CSD
have suggested alternative payment amounts for Section
734.810, but they have not provided sufficient additional testimony to
show why the
Board must adopt their suggested rates over the maximum payment amounts proposed by
the Board,
or that the bidding and the unusual or extraordinary circumstances provisions
will not allow for reimbursement ofreasonable costs
in cases where an owner’sor
operator’s costs exceed the maximum payment amounts proposed by the Board.
The
Illinois EPA does not believe the suggested changes
are necessary or appropriate, or that
sufficient justification to
warrant a change to the Board’s First Notice Proposal has been
provided.
Please see the Illinois EPA’s comments on Section 734.800 (above) for a
discussion ofCSD’s suggested change ofthe maximum payment amounts to
“threshold”
amounts.
11.
Section 734.820
21
CW3M suggests adding a provision to
Section 734.820
to make the maximum
payment amounts for travel associated with professional consulting services also
applicable to
drilling costs to
cover drilling contractors’ mobilization charges.
See Exh.
106
at 21.
USI states in its
testimony that the maximum payment amounts proposed by
the Board in
Section 734.820 “are appropriate” and that it “has no objection to their
implementation,” with the exception ofthe omission of a maximum payment amount for
mobilization.
Exh.
109 at 40.
The Illinois EPA testified that mobilization
costs were included in the drilling
rates it proposed
to the Board.
Transcript ofMay 26, 2005,
at 46-47.
The Board’s
proposal expressly includes mobilization charges in the maximum payment amounts for
drilling.
See 35
Ill. Adm.
Code 734.820(a) (proposed) (“Such costs must include, but not
be limited to, those
associated with mobilization.”).
Furthermore, the travel
rates that
CW3M proposes to make applicable to drilling costs were developed and intended to
be
used for travel costs associated with professional consulting services, not drilling costs.
Neither CW3M norIJSI provide sufficient additional
testimony to show why the
proposed maximum payment
amounts do not provide reimbursement for reasonable
mobilization costs, or why the bidding and the unusual or extraordinary circumstances
provisions will not allow for reimbursement ofreasonable costs associated with drilling
in cases where
the owner’s
or operator’s drilling costs
exceed the maximum payment
amounts proposed by the Board.
The Illinois EPA does not believe the suggested
changes are necessary or appropriate, or that sufficient justification to warrant a change to
the Board’s First Notice Proposal has been provided.
12.
Section 734.825
22
CW3M continues to
suggest changing the maximum payment amounts under
Section 734.825 based upon amounts approved under Illinois Department of
Transportation (“DOT”) contracts.
CW3M also suggests changing the “swell factor”
and “weight/volume” conversion factor set forth in Section 734.825, and suggests adding
a reimbursement amount of$14.25 per cubic yard
for “additional
expenses” associated
with the transportation Qfsoil that
is temporarily stockpiled on-site or off-site.
USI states that it believes the maximum payment
amounts set forth in Section
734.825 ofthe Board’s First Notice Proposal “are appropriate.”
Exh.
109
at 40.
It has
“no
objection to theirimplementation.”
j4,.
(no objection to
the maximum payment
amounts in
Sections 734.8 10 through 734.840,
excluding drilling mobilization costs).
•The Illinois EPA submitted as Exhibit
89 a letter from DOT that explains the
costs in IDOT’s contracts “should not be used to
compare orjusti~costs
proposed by
TEPA in this rulemaking.”
Exh.
89 at 2.
The Board has already considered testimony
from CW3M regarding IDOT contract costs and decided not to use those
costs to
determine the maximum payment amounts under Section 734.825.
ç, ç~.g..
Exh. 29 at
49, Appendix J.
CW3M has not provided sufficient additional testimony to show why
the Board must adopt its suggested rates over the maximum payment amounts proposed
by the Board, or that the bidding and the unusual or extraordinary circumstances
provisions will not allow for reimbursement of reasonable costs in
cases where an
owner’s or operator’s costs exceed the maximum payment amounts proposed by the
Board.
The weight/volume conversion factor now suggested by CW3M
is
1.2 tons per
cubic yard, lower than the
1.5
tons per cubic yard conversion proposed by the Board.
23
CW3M personnel previously testified that a conversion factor of 1.68 tons per cubic yard
more accurately reflects the predominant soil type
in Illinois.
~çç First Notice Proposal
at
73
(describing testimony ofMr.
Smith).
The Board received a great deal ofcomments
and testimony regarding the swell factor and the weight/volume conversion factor,
and
concluded that the factors it proposed are appropriate.
Id. at 73-74.
CW3M does not
provide any testimony regarding how its suggested swell factor and
weight/volume
conversion factor are calculated, or why the weight/volume conversion factor should now
be
1.2 instead of 1.68.
It merely states that the changes it proposes will eliminate “the
games played” with the factors.
How
a change in the conversion factor to
1.2 will
eliminate any “games played” is unclear.
CW3M has not provided sufficient additional.
testimony to
show why the Board must adopt its suggested swell factor and conversion
factor over those proposed by the Board, nor has it provided sufficient additional
testimony to show that the maximum payment amounts plus the bidding and the unusual
or extraordinary circumstances provisions will not allow for reimbursement ofreasonable
costs.
Regarding CW3M’s suggested additional $14.25 per cubic yard for “additional
expenses” associated with the transportation ofuncontaminated soil that is temporarily
stockpiled, one-site or off-site, CW3M
does not provide
sufficient testimony to show why
the Board must adopt this additional reimbursement amount.
CW3M has likewise not
provided sufficient testimony to show that the bidding and the unusual or extraordinary
circumstances provisions will not allow for reimbursement ofreasonable costs
in cases
where
an owner’s or operator’s costs exceed the maximum payment amounts proposed
by the Board.
Rather, it merely suggests arbitrarily increasing the maximum payment
24
amount by a sum roughly equal to the transportation charge for hauling contaminated soil
to
a landfill, even in cases
where the soil
is stockpiled on-site.
The Illinois EPA does not
believe the suggested
changes
are necessary or appropriate, or that sufficient justification
to warrant
a change to the Board’s First Notice Proposal has been provided.
13.
Section 734.830
CW3M suggests changing Section 734.830 by adding a “stop fee” for drum
disposal.
To
accomplish this
CW3M suggests making the maximum payment amounts
for travel associated with professional consulting services also applicable to
drum
disposal.
USI states that it believes the maximum payment amounts
set forth in Section
734.825 of the Board’s First Notice Proposal
“are appropriate.”
Exh.
109 at 40.
It has
“no objection to their implementation.”
Id. (no objection to the maximum payment
amounts in
Sections 734.8 10 through 734.840, excluding
drilling mobilization costs).
The Board’s proposal already includes any “stop fees” or other travel fees
associated
drum disposal in
the maximum payment amounts for drum disposal.
See 35
Ill. Adm.
Code 734.830 (proposed) (maximum payment amounts include payment for
costs associated with drum j~urchase,transportation, and
disposal).
Furthermore, the
maximumpayment amounts for travel set forth in Section 734.845(e) were developed
and intended to
be used for travel costs associated with professional consulting services,
not drum disposal.
CW3M has not provided any additional testimony to show why the
Board must adopt a “stop
fee” in addition to
the maximum payment amounts proposed by
the Board,
or that the bidding and the unusual or extraordinary circumstances provisions
will not
allow for reimbursement ofreasonable costs in
cases where an owner’s or
25
operator’s costs exceed the maximum payment amounts proposed by the Board.
The
Illinois EPA does not believe the suggested changes are necessary, or that sufficient
justification to warrant a change to the Board’s First Notice Proposal has been provided.
14.
Section 734.840
CW3M suggests changing the maximum payment amounts in
Section 734.840 for
costs
associated with
concrete, asphalt, and paving.
In support of the changes it
references its
prior testimony in this rulemaking and states that the suggestedrate.sare
consistent with prevailing rates.
Exh.
106
at 25.
USI states
that it believes the maximum payment
amounts set forth in Section
734.840 ofthe Board’s First Notice Proposal “are appropriate.”
Exh.
109 at 40.
It has
“no objection to
their implementation.”
a
(no objection to the maximum payment
amounts in
Sections 734.810 through 734.840, excluding drilling mobilization àosts).
TheBoard has already considered theprior testimony submitted by CW3M and
others regarding the maximum payment amounts for concrete, asphalt, and paving,
and
declined to make any changes to the amounts proposed by the Illinois EPA.
See First
Notice and Opinion
at 81.
CW3M has not provided any additional testimony to
show
why the Board must
adopt CW3M’s suggested rates over the maximum paymentamounts
proposed by the Board, or that the bidding and the unusual or extraordinary
circumstances provisions will not
allow for reimbursement ofreasonable costs in cases
where
an owner’s or operator’s costs exceed the maximum payment amounts proposed
by the Board.
The Illinois EPA does not believe the suggested changes are necessary or
appropriate, or that sufficient justification to warrant a change to the Board’s First Notice
Proposal has been provided.
26
15.
Section 734.845
Throughout Section 734.845
CW3M suggests changing the maximum payment
amounts for professional consulting services into absolute payment amounts.
See, ~
Section 734.845 (“shall be paid per unit task”); Section 734.845(a)(l) (“shall be paid a
lump sum total
of’);
Section 734.845(a)(2) (“shall be reimbursed at a rate
of’);
Section
734.845(a)(3) (“shall be paid a lump sum rate of”).
With such changes, the rules would
mandate that
the Illinois EPA reimburse an owner oroperator the fill maximum payment
amount for a task
regardless ofthe amount actually charged for thetask.
CW3M does
not provide any additional
testimony to
support these changes.
The Illinois EPA does not believe that an owner or operator should be reimbursed
the full maximum payment amount for a task in cases where the owner or operator is
charged less for the task.
Amounts
exceeding the total charged to the owner or operator
would not be reasonable, would not be incurred in
the performance ofsite investigation
or corrective action, and would be amounts in excess ofthose required
to meet the
minimum requirements of Title XVI.
Therefore, they would be
ineligible for
reimbursement from the UST Fund.
415 ILCS
5/57.7(c)(3)
(as amended by P.A.
92-
554).
The Illinois EPA agrees with the Board’s conclusion that “maximum payment
amount” is the proper term to use to
identify the payment amounts set forth in the rules.
See First Notice Proposal
at 81.
CW3M also suggests changing the maximum payment amounts throughout
Section 734.845.
However, it does not provide sufficient additional testimony to show
why the Board must adopt its suggested rates over the maximum payment amounts
proposed by the Board, orthat the bidding and the unusual or extraordinary
•
27
circumstances provisions will not allow for reimbursement of reasonable costs in
cases
where an
owner’s or operator’s costs
exceed the maximum payment amounts proposed
by the Board.
The Illinois EPA does not believe the suggested changes
are necessary or
appropriate, or that sufficient justification to
warrant a change to
the Board’s First Notice
Proposal has beenprovided.
Although USI believes the maximum payment amounts
set forth in earlier
sections ofSubpart H are appropriate
and has no objection to
the structure ofthose
Sections, USI suggests a wholesale change to Section 734.845.
USI’s suggests changing
Section 734.845 into
an elaborate and difficult to decipher system for calculating a series
ofdifferent payment amounts the Illinois EPA must use when reviewing costs associated
with professional consulting services.
Some payment amounts developed under the
system would be published and made available to the public while others would remain
unpublished and be known only to the Illinois EPA.
However, as stated at the July 27,
2005, hearing, and repeated numerous times in Public Comment 59, USI’s suggested
changes arejust a concept rather than an alternative proposal that can be readily adopted
by theBoard.
See,
~
PC 59
at 20 (“It should be emphasized that USI’s proposed
changes to the regulations were conceptual
in nature and were not considered to be a final
draft that could be adopted without further editing
and review.”)
Although USI’s suggested changes are merely a concept, the Illinois EPA submits
the following comments:
a.
The Illinois EPA testified earlier about the creation and use ofa
database to
set reimbursement rates under Subpart H.
The Illinois EPA continues
28
to believe that the concept suggested by USI would greatly complicate and
lengthen the reimbursement process for all parties involved.
b.
The Illinois EPA believes that USI’s concept ofrequiring the
Illinois EPA to
develop and use secret rates that are not adopted in
rules or
• otherwise made public
is inappropriate.
The Illinois EPA has been sued in the
past for using reimbursement rates that were not adopted in rules.
Setting up
a
system of generally applicable rates that are not adopted in rules as required by
the Administrative Procedures Act
only invites additional
litigation.
c.
Prior to the July 27, 2005, hearing USI met with the Illinois EPA
and provided a detailed demonstration of the database software it developed as a
part ofits
concept.
The Illinois EPA found that the database was very
complicated, confusing to understand, and cumbersome to
use.
In addition, the
database required a breakdown ofcosts into minute detail with
little or no
quality
control to determine whether the costs being entered are reasonable.
The Illinois
EPA does not believe that the large majority ofconsulting firms would embrace
the use ofthe database software as USI represented.
In addition, the Illinois EPA’s information systems staff had concerns
about application and security issues related to the database software.
Furthermore, implementation and
maintenance ofsuch a database and
its software
would require significant resources
that the Agency simply does not have.
d.
It appears that USI’s concept would require the Illinois EPA to
adopt rules containingrates before the concept could be implemented.
The
concept’s cost review system,
at least in its first phase, “would use Agency-
29
approved unit rates, against which the consultant’s proposed pricing will be
compared.”
Exh.
109 at 72.
Because such “Agency-approved unit rates” would
be generally applicable and
implement, apply, interpret, or prescribe law or
policy,
the Administrative Procedures Act requires that the rates be adopted in
rules.
SeeS
ILCS
100/1-70 (definition of “rule”).
Therefore, implementation of
USI’s concept could not begin until the Illinois EPA has adopted rules that set
forth the “Agency-approved unit rates.”
e.
Whether USI’s concept would result in the reimbursement of
reasonable remediation costs
is not clear.
USI
could not provide the amount, or
even a range ofamounts, that owners and operators would be reimbursed uflder its
concept.
See PC 59 at 42-43.
However, based on USI’s data the amounts
reimbursed under its
concept could be high.
For example, in USI’s data the
“Historical Professional Consulting Service Charges Based on 80
Coverage!
95
Confidence (Upper Limit)” total
more than $110,000.
Exh.
109 at 399.
Contrast this amount,
which is for consulting services alone, with the average
total amount paid per site for sites closed during the years
1997 through 2001.
See Exh.
88
at 16-17 (average total amount paid per site ranged from
$75,759
to
$95,707).
At the last hour, USI has submitted a significant amount of information regarding
its concept for the reimbursement ofprofessional consulting services.
However, it has
not provided sufficient
additional testimony to
show why the Board must abandon the
proposed maximum payment amounts and structure of Section 734.845 and
begin
developing rules for a reimbursement system similar to the concept submitted by USI.
30
Nor
has USI provided sufficient additional testimony to
show that the bidding and the
unusual or extraordinary circumstances provisions ofthe Board’s proposal will not allow
for reimbursement ofreasonable costs
in cases where an owner’s or operator’s costs
exceed the maximum payment amounts proposed by the Board.
The Illinois EPA does
not believe the suggested
changes are necessary or appropriate, or that sufficient
justification to warrant a change to the Board’s First Notice Proposal has been provided.
II.
Comments
on Public Comments
Submitted in Response to the Board’s First
Notice Proposal
•
•
1.
Under item
11 ofCSD’s pre-filed testimony for the July 27,
2005,
hearing,
CSD comments on costs associated with preparing and submitting applications for
reimbursement.’
See
Exh. 99
at
5-6.
Such costs arc included in the amounts the Board
proposed for professional consulting services under Section 734.845.
The Illinois EPA
believes the amounts proposed by the Board
are appropriate to cover reasonable•costs
associated with the preparation and submission of reimbursement applications.
The
frequency with which an
owner or operator submits requests for reimbursement, whether
it be only a few times during
rcmediation or once every
90 days, is a decision
left to
the
owner or operator.
2.
Publie-Conimcnt
39
discusscs a-perceived-ambigthty-in-thtpropose&rulvs.
The premise ofthe comment is that defining the extent ofgroundwater contamination
is
unnecessary if the local municipality’s groundwater ordinance has been approved as an
‘This
comment was submitted in CSD’s pre-filed testimony for the
July 27, 2005, hearing, but
isdiscussed•
here because it is more in the nature of a public comment than testimony in support of a suggested change
to the Board’s First Notice Proposal.
31
institutional
control.
Accordiug to Public Comment
39, this
is because certain pathways
have
already been severed by the “preexisting” groundwater institutional control.
The ambiguity discussed in Public Comment 39 does not exist.
There arc
no
“preexisting” groundwater ordinance institutional controls.
Groundwater ordinances arc
approved as institutional controls
on a site-specific basis, not on a city-wide basis.
In the
case of the City of Chicago, the City’s groundwater ordinance
has been approved as an
institutional
control
only for
individual sites, not
for the entire
City.
In order to use a groundwater ordinance as an institutional control for a particular
release, the owner or operator must show that the Tiered Approach to Corrective Action
Objectives (“TACO”) rule requirements for using the ordinance as an institutional
control
have been satisfied.
The first step is for the owner or operator to
show that the
requirements
of 35 Ill. Adm.
Code 742.1015
have been met.2
S~
35
Ill. Adm.
Code
1015(a).
Inter alia, Section 742.1015
requires the submission of maps delineating the
extent of groundwater contamination, maps delineating the boundaries ofall properties
under which groundwater contamination is located, and information identifying the
current
owners of
the properties under which groundwater contamination is located.
35
2
Once the requirements of 35
Ill.
Adm. Code 742.1015
are met, the groundwater ordinance
can
be
used as an institutional control
to satisfy two different requirements under TACO.
See
35
III. Adm.
Codc-~4-2v10f5(a~Thtñrstir35ii1nthreodt94±32O(d)~ontofsirprovisimirthflnsttnnet
in
•
order
to exclude the
groundwater ingestion exposure route from consideration (i.e., no remediation
objectives need to be developed for the exposure route).
It requires an ordinance adopted by a unit of local
government to effectivelyprohibit the
installation and use of potable water supply wells
within 2,500 feet
from the source of the release.
35111.
Adm.
Code 742.320(d).
The second is 35111.
Adm. Code
742.805(a)(3), which is one of seven demonstrations that must be made before
the owner or operator can
request approval to develop Tier 2
groundwater remediation objectives.
Under Section
742.805(a)(3),
using Equation R26 inaccordance with
Section 742.810 the owner or operator must demonstrate that, at the
point of human exposure,
the concentration of any contaminant of concern in groundwater will meet
the
applicable Tier
I
groundwater remediation objective or the
Health Advisory
concentration.
35
Ill. Adm.
Code 742.805(a)(3).
Groundwater ordinances
are used under this second provision to extend the point of
human exposure outward from a site to a
location where the concentrations of contaminants
of concern no
longer exceed remediation objectives or Health Advisory concentrations.
32
Ill.
Adm.
Code
101 5(b)(2) through
(4).
Other requirements under Section 742.1015
include notifying the owners of the property under which contaminated groundwater is
located (35 Ill. Adm. Code
742.1015(c)),
submitting
a copy ofthe request to use the
groundwater ordinance as an institutional control to the local government
(35 Ill.
Adm.
Code 742.1015(e)), and
recording the ordinance with the No Further Remediation Letter
(35 Ill. Adm.
Code 742.101 5ffl).
The TACO rules expressly provide that
a groundwater
ordinance approved
as an institutional control does not become effective utitil it is
officially recorded with the No Further Remediation Letter.
35
Ill. Adm.
Code
742.1015(g).
As can be seen from the requirements of 35
Ill. Adm.
Code
1015, as well those
from 35
Ill.
Adm.
Code 742.320 and 742.805
(see footnote 2), a groundwater ordinance
caimot be
used as an institutional control at one site merely because it has been approved
as an institutional control for another site in
the
same
municipality.
The owner or
operatormust demonstrate that the requirements of Section 742.1015,
and the
requirements of Section 742.320
or 742.805, have been met with respect to the particular
release being remediated.
Furthermore, the requirements for using a groundwater
ordinance as an institutional control specifically call
for a delineation ofthe groundwater
contamination.
Therefore,
a groundwater investigation
is necessary.
For these reasons,
the suggested change to Section 734.300
is
unnecessary.
3.
In Public Comment 51, Greg Courson ofAdvanced Environmental
Drilling and
Contracting, Inc.,
(“Advanced Environmental”) states that he has not been
contacted by the illinois EPA regarding anything pertaining to this rulemaking,
and that
he has not provided any rates to the Illinois EPA
for this rulemaking.
This conmient was
33
submitted in
response to
Illinois EPA testimony indicating that Illinois EPA personnel
talked to Mr. Courson
about
drum
disposal rates.
On page
167,
line
2, of the transcript ofthe May 25, 2004, hearing,
Harry
Chappel
identified Advanced Environmental as one ofthe companies the Illinois EPA contacted
about drum removal costs.
After reviewing the notes ofhis conversion with Mr.
Courson, Mr. Chappel realized that he did not discuss
drum
removal costs with Mr.
Courson.
He
called Mr. Courson
on or about October 3,
2003,
to discuss such costs, but
Mr. Courson
never returned that call.
On or about the same date, Ms. Chappel did talk
to
Mr. Courson about drilling costs.
The conversation about drilling costs is reflected on
page 28 ofExhibit 98, where the Illinois EPA lists Advanced Environmental as one of the
companies contacted about
drilling costs.
4.
The Illinois EPA
has
been unable to review Public Comment 53
and
therefore is unable to provide
any
comments on it.
The Illinois EPA was not served with
a copy ofthis
comment, nor has it been able to access a copy ofthe comment through the
Board’s Clerk’s Office On Line system.
5.
Public Comment 58
objects to
allowing bidding as an alternative method
ofsetting maximum payment amounts for professional consulting services.
PC
58
at
1.
In support of this objection the comment cites laws that require government agencies to
use a qualification based selection process when procuringprofessional services.
See Id.
Professional service costs being reimbursed from the UST Fund
are
for professional
services procured by owners
and
operators, not the Illinois
EPA.
Therefore, the laws
cited in Public Comment 58
are
inapplicable.
34
6.
Based on letters being sent by USI
(see Attachment
A to
these comments)
the Board is sure to receive additional
form
letters or petitions complaining about the
proposed rules.
While the persons signing these letters or petitions have every
right
to
register their opinions with the Board, the Illinois EPA suspects that most oftheir
opinions on this rulemaking arebased on USI’s characterization ofthe rulemaking and
may not reflect what their opinions would be if they had reviewed the entire record of
these proceedings.
III.
Suggested Non-Substantive Changes to the Rules Proposed in the Board’s
First Notice Proposal
The Illinois EPA suggests the following non-substantive changes to the rules
proposed in the Board’s First Notice Proposal to
correct minor errors and promote
consistency among the
rules’ provisions.
Some suggestions are in response to errors or
inconsistencies in
the Illinois EPA’s proposal to
the Board.
The Illinois EPA apologies
for any inconvenience caused by these errors or inconsistencies.
1.
Under the table ofcontents for
Part 732,
Section numbers “732.410” and
“732.612”
were replaced with “A.”
The Section numbers need to be restored.
See First
Notice Proposal at
84,
85.
-—
______-
2.
~nder
Scchon ~
of
the second sentence so
the sentence reads
“but is
not limited to” instead of “but is not
be limited to.”
$~
First Notice Proposal at
102,
239.
3.
The last line of Section 732.202(h)(1)(A) refers to
the collection of
samples as close as “practical” to
the UST backfill.
See First Notice Proposal at
105.
However, the remainder ofSection 732.202(h) and the corresponding sampling
35
requirements in
Section 734.2 10(h) refer to collecting
samples as close as “practicable.”
For consistency,
the
Illinois EPA suggests that “practical” be changed to “practicable” in
the
last line ofSection 732.202(h)(l)(A).
4.
In Section 732.307(j)(2), due to
the deletion ofthe reference to Section
732.311, “Sections”
should be changed to “Section”.
~
First Notice Proposal at
134.
5.
Under Section 732.309(a), a Licensed Professional Engineer must certify
a
site’s classification as a
part
ofthe
Site Classification Completion Report.
See First
Notice Proposal
at
139.
The paragraph should be amended to
also allow Licensed
Professional Geologists to certify a site’s classification.
Such a change is needed for
consistency with the proposed certification requirement in
Section 732.110(d), which
•
allows Licensed
Professional Geologists
to certify Site Classification Completion
Reports, and Public Act
92-735,
which expressly provides that “Site classification shall
be determined by a Licensed Professional Engineer or Licensed Professional Geologist in
accordance with the requirements of this Title, and the Licensed Professional Engineer or
Licensed Professional Geologist shall submit a certification to
the Agency ofthe site
classification.” Public Act 92-735 (2002) (amendmentto 415
ILCS
5157.7(b)(1)).
6.
Under Section 732.309(a)(2), “potables” should be changed to “potable.”
See First Notice Proposal at 140.
7.
Under Section
732.606(eee), the reference to
“this subsection (f~O”
should
be changed to “this subsection (eee).”
See First Notice Proposal at
187.
8.
Under Section 734.3 lS(a)(l)(B), the second sentence should be changed
from “a close as practicable” to “as close as practicable.”
$~
First Notice Proposal
at
251.
36
9.
Under Section 734.345(a),
“5/”
should
be added to the statutory citation so
it reads “415
ILCS
5157.7(b)(5).”
Sec
First Notice Proposal
at 263.
10.
Under Section 734.350(d)(5), the “a” before “potable” should be deleted
to match the plural.noun.
See First Notice Proposal at 267.
11.
Under Sectjon 734.410,
the symbol for soil bulk density should be
changed from
“(?b)”
to
“(Pb)”
and the symbol for soil particle density should be
changed
from
“(?~)“
to
“(Ps).”
$~
First Notice Proposal
at 270.
12.
The Board decided to
delete Sections
734.845(b)(5)
and
(6) ofthe Illinois
EPA’s proposal and replace them with a new Section 734.845(b)(5).
$~
First Notice
Proposal at 80.
In the text ofthe rules, however, changes were made
to Sections
734.845(a)(5)
and
(6) instead of Sections 734.845(b)(5) and (6).
The Board’s changes
should be made under Section 734.845(b) instead ofSection
734.845(a).
Respectfully submitted,
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY
Kyle Rominger
-AssistanECeuns&---
---—-_____
DATED:
________
1021 North Grand Avenue East
P.O.
Box 19276
Springfield, Illinois 62794-9276
(217) 782-5544
•
37
-
P.02
?AG~
ei
UnicS $cI.nce li’dinwts, Inc.
PA
Bo*
360
S295 tart U, H~9h.qy
‘~
5
Wocdl
tth’fl,
IL
6289$
loll icee
800.3722740
pMne
6St7fl.24~
I
fa, 619735 ;g~~
RE:
URGENT;
IFFA Proposed Under~tound
Storage
Tsnk Rules Have
Significant
Negative
(mpact
for
OvaersIOperatot~
Dear
Beware
that
the
Illinois
Environmental
Protection
Agency
(JEPA)
i3
proposing
changes
to
its
underground
storagc
tank
rules
~.ndre~u!aLienschar
are
likely
to
fovea
you
to
dig
into your
pocket
to
pay
for the
costs of
environmantai
clean-up
at
your 3ite
The
modifica
osed by
the
IE?A
could
reduca your
henaflis from the
1_cakin
Under
mind
Storage T
_US
nd
by
ai
estimated
thirty perc:rit to
fi
y percent
(30
to
5O)
and
mey
force
yot
ay
ces
out of
your own
pocket.
If adopted. thu
rule
could cost you fboussmds of
dotl&rs.
in
addition,
the
rnodincañons could
significantly
impact your long’-terrn
property
value
and
leave
you
with
unicstowrt financial and
legal
liabjtitjes
In order to protect your interest, this
proposed
ruling
must
be changed before h
is
adopted~
Simply put,
the proposed rules are
nut f~r
to
you,
the taxpaying
tank owner/operator who
has paid
into
the LUST Fund
Nt good
faith
and who relies upon the
LUST Fund
to provide ful! coverage of your
post-deductible
corrective
action
costs.
tndus~ry
professionals
and owners/operators
from
all
parts
of
the state have voiced strong
oppositfon
to
the proposed
IE?A
ruling.
Your opinion will
ni*ke
a
difference!
Prior to
a
July
27,
2005 hearing On
this matter, we
received
over
100 signed
petitIons
from ownen/OperfitoN requesting
mote
reasonable
modifications
to
the
rules.
The petition was irtvaluable
in
gaining
the
Illinois Pollution Control
Board’s
((PCB)
attention
conctrning the probems associated
with
the IEPA’s proposed
rules.
The IPCB agreed
to receive
subminals ofatterr.adve
rules
and
to
receive
additional public
comments up
to
September
23.
2305.
Since the last hearing on July
27, 2003
our company, United Science Industries (USI). developed
alternative rules
that
we believe are
fAir and
equitable for all concerned parties including you as an
ov~ertoperator~
the
consuirants/contractors
that provide envirortrnental
services and
the IEPA
The
atternative
niles were provided to
the 1PC~and
should ~
~sted
on their web
sue in the
nexX
several
days.
They
are also listed
on
USFs
web site.
Links
to both
sites
are
provided
in
the artachtd
tcformatjon sheet.
21:28
Scpttmber
12,
2005
ATTACHMENT
A
___
-
P~6c
02
-C
Here
is
how you
can help and it i~
relatively a~sylThe
JPCH must understand your position on this
criticai
issue.
A si~i~c~nc
public
response may
definitely sway theiropinion.
You can
help by
signing
the attached statement ofsupport
card indicating either your support ofthe alternative rules or
your request
that
the
IPC.B delay the rulemaking until
such time that
another alternative rule can be
prepared
that
Is
similarly fair and equitable.
Although
we woutd
like your support of~healternative
rules proposed by liSt,
either
position
will
help.
The attached infonnation sheets
provide
more detailed information
concerning the rules and how
you
can
help.
We are
near
the
end ofwhat has been
a
long end
difficult negotiation process. Now, more
than ever, is
the rime
your opinion
will
counti
We
hope you
agree
and will
send
us the
attached
statement of support
card.
To
meet
the deadlines, we need
to receive your response no I~wr
than
September
21,
2005.
In closing,
I realize you may not Mve
much
background
ott this sflt1ation or our firm.
I believe the
attached information sheet plus
the web site
links will provide you more than enough
information
concerning the siwation. Concerning cur
firm, USI has been
serving
the owners/operatars ofleaking
underground
atorage tanks
in
Ilinois
since
1989.
We
are
a
strong, viable
company
with
over
100
employees
and have
for ye.ars
spcciafl2ed in
serving the interests
of
smsll owncrslopcrarors.
We
want
to protect
the
interest
of
our
clients
and
all
owners/operators within
the
industry.
I know this is
short
notice,
but
as
you
probably know
as a business
owner,
sometimes drastic Sjtuations
require
quick
actions.
if you
would like
to speak
to
someone
about
this
dghi
away,
please don’t hesitate
to
CoMae!
US
St
i .800.372.8740.
Sincerely
p
Jay
P.
Koch
CEO
STATE OF ILLINOIS
)
)
COUNTY OF SANGAMON)
PROOF OF
SERVICE
I, the undersigned,
on
oath state that
I have
served
the
attached Illinois
Environmental
Protection Agency’s Comments on behalfofthe Illinois Environmental Protection Agencyuppn the
person
to whom it is directed, by placing a copy
in an envelope
addressed to:
Dorothy M. Gunn, Clerk
Pollution Control Board
James R. Thompson Center
100 West Randolph St.,
Ste
11-500
Chicago, Illinois 60601
(Overnight Mail)
See Attached
Set-vice List
Marie Tipsord, Hearing Officer
Pollution Control Board
James R. Thompson Center
100 West Randolph St., Ste
1 1-5Q0
Chicago, Illinois 60601
(Overnight Mail)
and mailing it from Springfield, Illinois on
SUBSCRIBED AND SWORN TO BEFORE
ME
1~LLdA~
Ks~,
this2~dayofSifiett~Dtr~
200S
BbL
Notary Public
OFFICIAL
SEAL
DRENDA
BOEHNER
NOTAI~ PUBLIC.
STATE
OF
ILLINOIS ~
::MY
COMMISSION
EXPIRES
I I-14.2005t
THIS FILING IS
SUBMITTED ON
RECYCLED PAPER
Printing
Service List....
Page
1 of 4
Party Name
Role
City &
State
Phone/Fax
Ogle
CQiJotyEtate~sAttqr~~y
Office
Ogle
County Courthouse
Oregon
815/732-1170
110
South Fourth Street,
P.O.
IL
61061-
815/732 -6607
Interested
Party
Box
395
0395
Michael C.
Rock,
Assistant
State’s
Attorne
700
First
Mercantile
Bank
Brown,
Hay&StephensLL~
Building
Springfield
217/544-8491
IL
62705-
Interested Party
205
South
Fifth
St.,
P.O.
Box
217/544-9609
2459
2459
Claire A.
Manning
EPA
1021
North
Grand
Avenue
Springfield
—~
East
IL
62794-
217/782-5544
Petitioner
217/782-9807
P.O.
Box 19276
9276
Gina
Roccaforte,
Assistant Counsel
Kyle
Rominger, Assistant
Counsel
Doug
Clay
Hod
e_~wyex2em~n
3150
Roland Avenue
Springfield
217/523-4900
IL
62705-
2 17/523-4948
Interested
Party
Post Office
Box 5776
5776
Thomas
G.
Safley
-
Bank One
Plaza
Chicago
312/853-7000
Interested Party
10
South
Dearborn Street
IL
60603
312/953-7036
William
G. Dickett
Karfljs,White&Nkgel._Ltd.
414
North Orleans Street
Chicago
312/836-1177
Interested Party
Suite
810
IL
60610
312/836-9083
Barbara
Magel
IHJnQsLRe1role~.LmJ4arketers_Assoc±aLon
Springfield
217/793-1858
112
West Cook Street
Interested Party
IL
62704
Bill
Fleischi
Woodlawn
Ltot~edScnceindcistrIes.
Inc.
P.O.
Box
360
618/735-2411
IL
62898-
Interested Party
-
6295
East
Illinois Highway
15
618/735-2907
0360
Joe
Kelly,
PE
-
IUinoi~Env1ronment~LRe~gvt~toryGroup
Springfield
217/523-4942
3150 Roland Avenue
Interested Party
IL 62703
217/523-4948
N. LaDonna Driver
Carlsontnvironrnental,jnc.
65
E. Wacker Place
Chicago
Interested Party
Suite 1500
IL 60601
Kenneth James
DesPlaines
chernic~tJncustryCouncil of Illinis
2250
E.
Devon Avenue
IL
60018-
Interested
Party
Suite
239
4509
Lisa Frede
rrj~~&ThQrnburg
1
North Wacker Drive
Chicago
312/357-1313
Interested
Party
Suite 4400
IL
60606
312/759-5646
Carolyn
S.
Hesse,
Attorney
Springfield
Rsppstngineering&Applied_Science
821
South
Durkin Drive
IL
62791-
217/787-2118
Interested Party
P.O.
Box 7349
217/787-6641
7349
Michael W. Rapps
~pvironmentalManagemes~tñ
2012
West
College Avenue
Normal
309/454-1717
Suite 208
IL
61761
309/454-2711
Techoplog.ie~
http://www.ipcb.state.il.us/cool/external/casenotifyNew.asp?caseid=6286¬ifytype=Ser...
9/20/2005
Printing Service List....
Page 2 of 4
Interested Party
Craig
S.
Gocker,
President
Environmental
Bureau
QfThe
of the
Attorney General
188
West
Randolph,
20th
Chicago
312/814-2550
IL
60601
312/814-2347
Interested
Party
Floor
RoseMarie Cazeau,
Bureau
Chief
~
AssQciates,_Lj,C
8731 Bluff Road
Waterloo
618/935-2262
Interested Party
IL
62298
618/935-2694
Tom
Herlacher,
P.E., Principal
Engineer
Illinois PeL~ution
Control
Soard
100
W.
Randolph
St.
Chicago
312/814-3620
Interested Party
Suite
11-500
IL
60601
312/814-3669
Dorothy
M.
Gunn, Clerk of the
Board
Marie Tipsord,
Hearing
Officer
huff
&Huff,
Inc.
512
West
Burlington
Avenue
LaGrange
Interested Party
Suite
100
IL
60525
James
E.
Huff,
P.E.
Black
&Veatch
101
North Wacker Drive
Chicago
Interested Party
Suite
1100
IL
60606
Scott Anderson
~
Springfield
217-522-6152
111 N. Sixth Street
Interested Party
IL 62701
Claire A. Manning
rfl&~nvironrnent~Ltac1
1000
West
Spring Street
South
Elgin
847-468-8855
Interested Party
IL
60177
Melanie
LoPiccolo,
Office
Manager
Illinoi~Pep~rtrnertpfNMuraL.ftesqurces
Springfield
217/782-1809
One Natural
Resources Way
IL
62702-
Interested Party
1271
217/524-9640
William
Richardson,
Legal
Counsel
~w~pgb~~±fepler,
Broom,_MacQpn~ld,
103
W.
Vandalia Street
Edwardsville
618/656-0184
Hebrank. &
True
Suite
300
IL
62025
618/656-1801
Interested Party
-
Musette
H.
Vogel
-
FcoQigital
Development
LLC
P0
Box
360
Woodlawn
(618) 735-
Interested Party
6295
East Illinois
Hwy
15
IL
62898
2411
Joe
Kelly,
VP Engineering
Greati.akes
Analytical
Buffalo Grove
(847) 808-
1380
Busch
Parkway
Interested Party
IL
60089
7766
A.) Pavlick
CSD
EnvironmentaLServ±ces.Jnc
2220
Yale Boulevard
Springfield
217-522-4085
Interested Party
IL 62703
Joseph
W.
Truesdale,
P.E.
CQRFieoJogi.cal$er~dces,
Ir!c~
Springfield
217-787-6109
2621
Monetga, Suite C
Interested Party
Il
62704
Ron Dye,
President
Downers
Go~rouv SeLYJceSIOc
3140 Finley Road
Grove
630.795.3207
Interested Party
IL
60515
Monte
Nienkerk
PpCtaboxatories
Peoria
2231
W.
Altorfer Dr.
309-692-9688
Interested
Party
il
61615
Kurt Stepping, Director of Client Services
http://www.ipcb.state.iLus/cool/extemallcasenotifyNew.asp?caseid=6286¬ifytype=Ser...
9/20/2005
Printing Service List....
Page
3 of4
Atwel-Hicks4
Inc.
940
East
Diehl
Road
Naperville
630 5770800
Interested Party
Sute 100
IL 60563
Thomas
M.
Guist,
PE, Team
Leader
CW3M_Cprn.pany,
Inc.
701
South
Grand Ave.
West
Springfield
217-522-8001
Interested Party
IL
62704
Jeff Wienh off
$u~wrb~nJatQr3tcries~
In~~cr
Hillside
4140 Litt Drive
708-544-3260
Interested Party
IL
60162
Jarrett Thomas, V.P.
Environtal
Consultina&
EmLneer±ng,551
Roosevelt Road
Glenn
Ellyn
#309
IL
60137
Interested Party
Richard Andros,
P.E.
~iACThCEn~ineerjpg&çppsulting4jnc,
Peoria
8901
N.
Industrial
Road
Interested
Party
IL
61615
Terrence
W.
Dixon,
PG.
IjUnosP~partm~ntof1ran~pprtatiQp
2300
Dirksen
Parkway
Springfield
Interested
Party
Room
330
IL
62764
Steven
Gobelman
SEECO
Environmental
Services,_Inc.
Tinley
Park
7350
Duvon
Drive
Interested
Party
IL
60477
Collin
W.
Gray
ELerJ.~cherAngieton
Associates,
LLC
Alton
522
Belle
Street
Interested Party
IL
62002
Jennifer Goodman
~iitedfnyfrpnrnentaiCon
ultants~Inc.
119
East
Palatin
Road
Palatine
Interested Party
Suite
101
IL
60067
George
F.
Moncek
-
Mccuire
Woods
LIP
77
W.
Wacker
Chicago
312/849-8100
Interested Party
Suite 4100
IL
60601
David
Rieser
Greerisfeider,
Hemker
~_Q~fl~
10
S.
Broadway
St.
Louis
314-241-9090
Complainant
Suite
2000
MO
63104
Tina Archer, Attorney
Oak
Forest
Midwest
Engineering
Ser~ices,Jnc~
4243
W.
166th
Street
708-535-9981
Interested P.~ty
IL
60452
Erin
Curley,
Env.
Department
Manager
AmerIcan Environmental
corn.
3700
W.
Grand Ave.,
Suite
A
Springfield
217/585-9517
Interested Party
IL
62707
Ken
Miller,
Regional
Manager
_______
____
Centralia
AppiethEnyiroiimentaL5olutions,
Inc.
P 0 Box
1225
6185335953
Interested Party
IL
62801
Delete
Me
2
-
~ecorJntexnat.ioriaLjac
Springfield
400
Bruns
Lane
Interested Party
IL
62702
Daniel
J.
Goodwin
Peoria
c~terj~iJJan
Inc.
100 NE Adams Street
3096751658
Interested Party
IL 61629
Eric Minder,
Sr.
Environmental
Engineer
K:PIvs
~m’ironrnent~l
Suite
1000
Chicago
312-207-1600
Interested Party
600 W.
Van
Buren
Street
IL
60607
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9/20/2005
-
Printing Service List....
Page
4 of 4
Daniel Caplice
Illinois Society
of. ProfessionM. Engineers
300
We
t
Ed
a
d
Springfield
217-544-7424
Interested Party
5
w
r
5
IL
62704
217-525-6239
Kim Robinson
Brittan
Bolin
GEl
Consultants,J.nc.
243
North Lindbergh
Blvd.
L~~41
Interested Party
Suite
312
7851
314-569-9979
Daniel
J. Goodwin,
P.E.
Total number of participants: 52
http://www.ipcb.state.i1.us/cooI/externaWcasenotif~New.asp?casei&r6286¬ifytype=Ser...
9/20/2005
-
